Jun. 23, 2013

Same-sex marriage supporters and same-sex marriage opponents argue their points in front of the U.S. Supreme Court on March 26, 2013 in Washington, D.C., as the Court takes up the issue of gay marriage. Saul Loeb/AFP/Getty Images / Saul Loeb/AFP/Getty Images

Written by

Arnold Fleischmann

Detroit Free Press guest writer

Supporters of marriage equality should not start celebrating if the U.S. Supreme Court strikes down some or all of the Defense of Marriage Act. There is a good chance that the Court will force states and the federal government to recognize only valid same-sex marriages performed in states that permit them.

Amending state constitutions is a tough process. Of the 30 states with bans, Arizona, Arkansas, Missouri, Nevada, Oklahoma, Virginia, South Dakota and Wisconsin require a majority vote of their Legislature to put an amendment on the ballot. In this era, that would require a solid Democratic majority – not promising in the near term for these eight states. Alabama, Florida, Kentucky, Nebraska, and Ohio require 3/5 of the legislature to get on the ballot. More daunting still, the remaining 17 states, including Michigan, require 2/3.

There is another alternative that might allow policy to catch up with changes in public opinion more quickly – the initiative. Fifteen of the states with a ban allow this process whereby citizens signing petitions can put a constitutional amendment on the ballot. This is a way to get around the legislature. That list includes the possibly winnable states of California, Colorado, Florida, Missouri, Nevada, Ohio, Oregon – and Michigan.

In Michigan, the petition process is complicated, but activists need to start planning now if they hope to succeed. The petition must include valid signatures totaling 10% of those who voted in the last election for governor. Right now that’s almost 325,000 – and they must be registered voters. Moreover, the proponents have only 180 days to gather valid signatures, with the petition due by mid-summer to be included in a November general election.

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Proponents of marriage equality will probably want to replace the 2004 amendment banning same-sex marriage (Article 1, Section 25 of the Constitution) with language permitting same-sex marriage. Wording an amendment is critical and is an issue left to the lawyers.

Activists would need to address several other questions. When – 2014, 2016, 2018? This starts with knowledge of public opinion, demographic trends, and understanding when your supporters and opponents are most likely to turn out. In the short term, 2014 includes statewide offices, the Legislature, and a U.S. Senate seat to replace Sen. Carl Levin, a Democrat That carries opportunities and risks alike. Advocates need to worry about winning, not speed.

Who? This includes deciding which voters to target. The young could be critical, but they are more likely to vote in the presidential election year of 2016. It includes infrastructure, mainly a single organization that speaks with a common voice and has a presence on the ground. It also includes tapping allies, including major businesses, for support, as well as doing outreach to congregations.

How much? The National Institute on Money in State Politics reports more than $175 million spent on Michigan’s five ballot measures in 2012. More than $33 million was spent by the company that owns the existing bridge to Windsor, and more than $66 millions was raised by the two sides in the Prop. 2 collective bargaining campaign. A marriage equality campaign might not rise to those heights, but spending by both sides combined in last year’s defeat of a marriage ban in Minnesota exceeded $18 million. Out-of-state money could aid both sides in Michigan.

What about the opposition? If Minnesota is a harbinger, there could be organized Catholic opposition. Supporters of marriage equality can probably also expect efforts to stymie them by Attorney General Bill Schuette.

The road ahead will not be easy for backers of marriage equality. Having public opinion on their side is not enough. But public opinion and changing demographics could provide the foundation for the hard work that leads to a successful initiative campaign.